Lead Opinion
ORDER
Petitioner’s “Amended Petition for Rehearing With a Suggestion for an En Banc Hearing” is GRANTED. The opinion filed on September 18, 2007, and appearing at
Petitioner’s “Motion For Leave to File a Response to the Reply of the United States to the Appellant’s Amended Petition for Rehearing” is DENIED as moot.
The parties may file new petitions for rehearing or rehearing en banc as provid
OPINION
We are called upon to decide whether petitioners’ convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return qualify as “aggravated felonies” that subject them to removal under the relevant immigration laws. In our previous оpinion in this case, Kawashima v. Gonzales,
I
Akio Kawashima and Fusako Kawashima
In 1997, Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1). In his plea agreement, he stipulated that the “total actual tax loss” for the purpose of determining his offense level under the Sentencing Guidelines was $245,126. Mr. Kawashima further conceded that he could be ordered to pay the same amount in restitution. On the same date, Mrs. Kawashima pled guilty to aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2). Her plea agreement was not included in the record before us.
On August 3, 2001, the Immigration and Naturalization Service
After holding a removal hearing, an Immigration Judge (“IJ”) concluded that the Kawashimas’ сonvictions were aggravated felonies under Subsection M(i). Accordingly, the IJ found the Kawashimas removable, denied their motion to terminate the proceedings, and ordered that they be removed to Japan.
The Kawashimas appealed the decision, and the Board of Immigration Appeals (“BIA”) remanded because the transcript containing the testimony of the hearing and the IJ’s oral decision was defective. After further proceedings, the IJ again denied the Kawashimas’ motion to terminate proceedings and ordered them re
The Kawashimas subsequently filed a motion to reopen seeking waiver of inadmissibility under the Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (reрealed 1996). The BIA denied the motion as untimely.
The Kawashimas timely filed separate petitions for review of the BIA’s affirmance of the IJ’s removal order and the BIA’s denial of their motion to reopen. We consolidated the petitions for review pursuant to 8 U.S.C. § 1252(b)(6) and consider each in turn.
II
We must first decide whether the Kawashimas’ convictions qualify as aggravated felonies under Subsection M(i). To do so, we rely on the familiar two-step test set forth in Taylor v. United States,
If the statute of conviction proscribes a broader range of conduct than the relevant definition of an aggravated felony, we move to the modified categorical analysis, and conduct a “limited examination of documents in the record of conviction,”
In this case, Subsection M(i) defines as an aggravated felony any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). We have held previously that “[t]his particular statutory definition of an aggravated felony ... has two elements: (1) the offense must involve fraud or deceit, and (2) the offense must also have resulted in a loss to the victim or victims of more than $10,000.” Chang v. INS,
A
We begin with the categorical approach. Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1).
B
We have reached this point in the Taylor analysis on four occasions in the past when comparing statutes of conviction lacking a monetary loss element to Subsection M(i) and each time we have turned to the record of conviction to determine whether the jury actually found, or the petitioner (as defendant) necessarily admitted a loss to the victim in excess of $10,000. See Kharana v. Gonzales,
In Navarro-Lopez, we held that a petitioner’s conviction for accessory after the fact under California state lаw was not categorically a “crime involving moral turpitude” as defined in the INA because the California statute under which petitioner was convicted proscribed a “broader” range of conduct than the generic definition that the INA provides.
The modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime. When the сrime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of’ the generic crime. See Li v. Ashcroft,389 F.3d 892 , 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).
Id. at 1073. Because we concluded that the California statute “lack[ed] an element of the generic crime — i.e., the moral turpitude, the requisite depravity,” we held that Taylor prohibited us from examining the record of petitioner’s conviction to determine whether he was, in fact, convicted of such an act. Id. As we explained,
The crime of conviction can never be narrowed to conform to the generic crime because the jury is not required— as Taylor mandates — to find all the elements of the generic crime. Even if [petitioner] had admitted to depraved acts, those admissions 'could not be used to modify the crime because they were not necessary for a conviction.
Id. (footnote and citation omitted).
The statutes under which the Kawashimas were convicted, 26 U.S.C.
Nevertheless, two factors give us pause before concluding that Navarro-Lopez compels such a result here. First, we have previously applied the modified categorical approach in cases where the statute of conviction prohibits a broader range of conduct than the generic offense, regardless of whether the former lacks a particular element of the latter. See, e.g., United States v. Parker,
In addition, however, we are given pause by the distinction between the handful of aggravated felonies listed in the INA that require a specific monetary loss and the other generic offenses we construe under Taylor. When we apply Taylor in the ordinary case, we consider whether a conviction qualifies as a generic offense with a unitary definition, such as a “crime involving moral turpitude” in removal cases or “burglary” in sentencing enhancement cases, to name just two. The Navarro-Lopez rule, which requires that the statute оf conviction must contain every element of the generic offense before we resort to the modified categorical approach, plainly applies in this setting. See Plasencia-Ayala v. Mukasey,
Subsection M(i), however, requires us to undertake a somewhat different inquiry. That statute defines as an aggravated felony any offense that “involves fraud or deceit in which loss to the victim or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i) (emphasis added). Two of our sister circuits have interpreted this “in which” language as a limiting provision or qualifier on the unitary generic offense — crime involving fraud or deceit— rather than an “element” of the offense itself. See Singh v. Ashcroft,
Under this construction, we suppose, the absence of a monetary loss element from the Kawashimas’ statutes of conviction would not рreclude us from examining the record to determine the amount of loss their prior offenses caused. Such an approach would account for the fact that most fraud statutes do not contain a monetary loss element.
Yet while these considerations might warrant examining the record of conviction to determine whether the Kawashimas’ offenses resulted in the monetary loss required by Subsection M(i), we must conclude that Navarro-Lopez forecloses that оption. We have consistently interpreted Subsection M(i)’s monetary loss requirement as an “element” of the generic offense, which the record of petitioner’s conviction must demonstrate that the jury actually found or the petitioner (as defendant) necessarily admitted. See Kharana,
Moreover, we find confirmation for our view in then-judge Kozinski’s concurrence in L% the lone authority cited to in Navarro-Lopez as support for this rule. Navarro-Lopez,
Thus, because the statutes to which the Kawashimas pled guilty to violating do not require proof of any particular monetary loss, we do not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000. Our conclusion that the government failed to show that the Kawashimas’ convictions are aggravated felonies under the categorical approach means that the Kawashimas are not removable and, accordingly, their petitions for review of the BIA’s affirmance of the removal order must be granted.
Ill
Our final task is to determine whether the BIA erred in denying the Kawashimas’ motion to reopen. As we have granted the Kawashimas’ petition for review of the removal order, we must dismiss their petition for review of the BIA’s denial of their motion to reopen as moоt. See Goldeshtein v. INS,
rv
For the foregoing reasons, Mr. and Mrs. Kawashima’s petition for review of the BIA’s affirmance of the IJ’s removal order in 04-74313 is GRANTED and Mr. and Mrs. Kawashima’s petition for review of the BIA’s denial of the motion to reopen in 05-74408 is DISMISSED as MOOT.
Notes
. We refer to Akio as "Mr. Kawashima” and Fusako as "Mrs. Kawashima.” We refer to Akio and Fusako collectively as the “Kawashimas.”
. On March 1, 2003, the Immigration and Naturalization Service (“INS”) ceased to exist as an agency under the U.S. Department of Justice and its functions were transferred to the Bureau of Immigration and Customs Enforcement within thе newly formed Department of Homeland Security. We refer to the INS and its successor as the "Service.”
. The Notice to Appear also alleged that the Kawashimas were removable for having been convicted of aggravated felonies under § 1101(a)(43)(M)(ii), but that allegation is not before us here.
. Our examination is limited to a "narrow, specified set of documents” that includes " 'the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.' " Tokatly v. Ashcroft,
. Specifically, the statute provides fines and imprisonment for any person who
[w]illfully makes and subscribes any return, statement, or оther document, which contains or is verified by a written declaration that it is made under the penalties of peiju*1115 ry, and which he does not believe to be true and correct as to every material matter.
26 U.S.C. § 7206(1).
. That statute provides for the fining and imprisonment of any person who
[w]illfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document.
26 U.S.C. § 7206(2).
. See, e.g., 18 U.S.C. § 1344 (bank fraud); id. § 152 (concealment of assets, false oaths and
. The provisions stripped of any practical effect by Navarro-Lopez are not limited to those with qualifying language relating to loss suffered by the victim. For example, 8 U.S.C. § 1101(a)(43)(K)(ii) defines as an aggravated felony any offense "described in section 2421, 2422, or of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage.” Id. (emphasis added). Yet only one of the three enumerated statutes lists the phrase "commercial advantage” as an element See 18 U.S.C. § 2423(d).
Concurrence Opinion
with whom
I concur in the court’s opinion because it faithfully applies our precedent. I write separately because the anomalous result such precedent requires us to reach ignores the plain meaning of the statute we interpret and disregards common sense.
I
This case puts us tо the familiar task of examining the list of removable offenses set forth in the Immigration and Nationality Act (“INA” or the “Act”), 8 U.S.C. § 1101, et seq., to determine whether an alien’s prior conviction fits within the scope of one such offense and, as a consequence, subjects him or her to deportation. In this case, the question presented is whether Mr. and Mrs. Kawashima, who pled guilty to having committed fraud in relation to the filing of their tax returns, have been convicted of a crime “involving] fraud or deceit in which loss to the victim or victim exceeds $10,000,” as defined by 8 U.S.C. § 1101 (a) (43) (M) (i) (“Subsection M(i)”). Our holding that the Kawashimas’ convictions do not qualify as removable offenses is compelled by two of our precedents.
First, when this court considers whether a petitioner’s prior conviction qualifies as a removable offense under the INA, we apply the two:step test designed by the Supreme Court in Taylor v. United States,
The second precedent that compels our holding is our recent en banc decision in Navarro-Lopez v. Gonzales,
Chief Judge Kozinski identified our decisions in United States v. Alvarez,
Our court adopted this reasoning in Navarro-Lopez, explicitly citing Chief Judge Kozinski’s Li concurrence, and such reasoning certainly appears consistent with Taylor’s core principles. Yet, it compels a most curious result here. In the case at hand, the Kawashimas pled guilty to violating a federal statute that prohibits fraud but does not require a particular monetary loss. Maj. Op. at 1113. Under Navarro-Lopez, we cannot consult the record of their convictions to determine whether their crimes caused a loss exceeding $10,000, as Subsection M(i) requires, because such loss is not an element of the
II
Before Navarro-Lopez, our caselaw avoided the illogical result that decision compels in this particular case. Previously, we considered whether fraud convictions qualified as removable offenses under Subsection M(i) by examining the record of conviction to determine the loss amount even where the statute of conviction lacked such an element. See Kharana v. Gonzales,
Navarro-Lopez rejected this approach, concluding that even our demand for such overwhelming evidence violated Taylor’s requirement that the crime of conviction contain every element of the generic offense. See
A
Our precedents applying the modified categorical approach in immigration cases make two assumptions that I suggest are untenable. The first assumption is that any and all language Congress uses to define a particular generic offense in the INA must be parsed into “elements,” each of which the petitioner must, in fact, have been convicted. Four of our sister circuits reject such extreme literalism, and with good reason. The most common generic offenses found in the INA and in recidivist sentencing enhancement statutes are “relatively unitary categorical concepts — like ‘forgery’ ... ‘burglary’ ... or ‘crime of violencе.’ ” Singh v. Ashcroft,
Accordingly, I believe it is unreasonable to interpret Subsection M(i) to require a “loss to the victim” element in the alien’s statute of conviction. Rather, the most natural reading of Subsection M(i)’s $10,000 loss requirement is as a qualifying provision that limits the number of predicate convictions that would otherwise subject an alien to removal. In other words, the statute provides that any alien who commits an offense “involving] fraud or deceit” is removable if such offense is one “in which” the loss to the victim exceeded $10,000. 8 U.S.C. § 1101 (a)(43)(M)(i). As the Third and Fifth Circuits suggest, the text of this statute plainly directs the agency (and our court upon a petition for review) to examine the circumstances surrounding the alien’s conviction; it does not demand that the statute of conviction specify the amount of monetary loss itself.
B
More importantly, acknowledging the linguistic distinction between provisions such as Subsection M(i) and the remainder of the removable offenses enumerated in the INA should not obscure the greater
First, the Supreme Court’s decision in Taylor was informed by constitutional concerns that are entirely absent from the immigration context. When a sentencing judge increases a defendant’s sentence based on his or her prior convictions, the defendant’s Sixth Amendment rights are impacted directly. Yet when an immigration judge cites an alien’s prior conviction as the basis for removal, there is no constitutional right in play. See INS v. Lopez-Mendoza,
Second, the INA specifies that, in removal proceedings, the government “has the burden of establishing by clear and convincing evidence” that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A).
As the Seventh Circuit has explained, after the fact of petitioner’s prior conviction has been established, “the appropriate classification of that conviction — whether it was a crime ‘involving moral turpitude’ or one ‘in which loss ... exсeeds $10,000’— may require additional information.” Ali,
It is true that the INA requires an alien to be “convicted” of the generic offenses before he or she may be considered removable on that basis. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); Id. § 1227(a)(2)(A)© (requiring the same for aliens “convicted” of crimes involving moral turpitude). But applying the INA’s evidentiary burden as it is written is not inconsistent with this requirement. The INA does not require that the jury in petitioner’s case was actually required to find him or her guilty of every word or phrase it uses to describe a generic offense. See Conteh,
If one accepts that Taylor1 s constitutional concerns do not migrate to the removal context, and if one further accepts that the burden of proof set forth in the INA differs from Taylor1 s, there is no rеason to ignore the record of conviction when determining whether an alien’s conviction qualifies as a removable offense. It should make no difference if the question is whether the predicate conviction was one “involving moral turpitude,” as it was in Navarro-Lopez, or if the question is whether such conviction is one “in which
Navarro-Lopez may have accurately interpreted Taylor, but it did so at the expense of fairly applying the INA. By importing Taylor’s criminal sentencing test, root-and-branch, to the arena of civil removal in which we find ourselves here, I believe Navarro-Lopez improperly rewrites the INA’s plain instructions and stands as a roadblock nеedlessly frustrating Congress’s intent.
rv
Our reformulation of the modified categorical approach in Navarro-Lopez stands alone, without support from any other courts of appeals to have considered this question. Moreover, our treatment of this issue was, at best, cursory — two paragraphs and a footnote — and, in my view, entirely insufficient to address a question of such great magnitude. Our decision never addressed the dissenting views of our sister circuits, or even acknowledged the precedents it overturned. See Hart v. Massanari,
In light of such swift treatment of an important and frequеntly recurring question, and especially in light of the growing weight of authority that rejects our conclusion, I believe it is fair to ask whether the modified categorical analysis we adopted as law of this circuit in Navarro-Lopez reasonably interprets the INA. I believe it does not, and I write separately in the hope that an en banc court with the power to address the anomalies that Navarro-Lopez compels will ask the same question very soon.
. In Shepard v. United States,
. The Second Circuit toyed with adopting the rule we did in Navarro-Lopez, but ultimately presumed, without deciding, that our pre-Aavarro-Lopez approach controls. Dulal-Whiteway v. U.S. Dep’t of Homeland Sec.,
. The statute goes on to provide that "No decision of deportability shall be valid unless it is based on reasonable, substantial, and probative evidence.” 8 U.S.C. § 1229a(c)(3)(A). The Act also lists the sources of evidence which may be consulted to establish proof of a conviction. Id. § 1229a(c)(3)(B). Those sources are substantially similar to those described as within the bounds of the inquiry in Taylor and Shepard.
. If one accepts such proposition, а separate question arises as to what sources a court may consider in determining whether clear and convincing evidence that a predicate offense fits within the relevant generic offense in the INA. The First Circuit limits its inquiry to the materials listed in 8 U.S.C. § 1229a(c)(3)(B), which are essentially the same as those described in Taylor and Shepard. See Conteh,